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Who are “the People” in Criminal Procedure?


Jocelyn Simonson (@j_simonson) is Professor at Brooklyn Law School.

The customary case caption in criminal court, “The People v. Defendant,” pits the community against one lone person in an act of collective condemnation. When I was a public defender in New York City, it was common for judges, clerks, and other courtroom players to refer to individual Assistant District Attorneys as “the People,” as in, “Do the people have an offer?,” “Would the people like to request a lunch break?,” or, if an ADA was not visible in the courtroom, “Are the People in the bathroom?” Calling an individual prosecutor “the People” sends a powerful message to courtrooms full of defendants and their supporters waiting for their cases to be called: a message that they are not part of “the People,” are not part of the public that matters. Even in jurisdictions in which the prosecution calls itself the “State,” “Government,” or “Commonwealth,” this idea—that the prosecutor is the People’s representative in the courtroom—pervades how we think and talk about prosecution and criminal procedure.

In a forthcoming essay in the Columbia Law Review, The Place of “the People” in Criminal Procedure, I critique this ideological separation between “the People” and the accused, asking what it would mean to think of the public on both sides of each criminal case. Part of my argument is that the people/defendant dichotomy constructs a limited and exclusionary view of which “public” matters in criminal adjudication. If we think of all members of the public as represented by “the People” and all those who might side with a defendant as “biased,” then we entirely exclude from criminal adjudication those who would disagree with a prosecution or support a defendant. But powerful acts of popular intervention on the side of defendants happen every day: a community bail fund posts bail for a stranger; a participatory defense team creates a biographical video about a defendant; a group of court-watchers sits in the audience section of a courtroom to demonstrate support for the accused.  These acts are sometimes unique or spontaneous.  But often, they are part of long-term efforts by marginalized groups, especially poor people of color, to participate in and change a criminal justice system that they feel does not represent them.

These powerful popular interventions on behalf of defendants provide a method of opening up a closed and alienating criminal legal system to a set of beliefs in the need for decarceration and even abolition held by subsets of the public that have for too long been excluded from public discourse. But rarely are agonistic acts of participation such as bail funds, bailouts, courtwatching, or participatory defense recognized as a legitimate part of our work of seeing justice done; rarely do we acknowledge in any formal manner that the arrest and prosecution of an individual can run against the interests of local community members. By relegating communal interventions on behalf of defendants to the status of problematic interference, rather than productive public participation, the ideology of criminal procedure facilitates the exclusion of marginalized communities from everyday criminal adjudication. In doing so, procedural rules and practices do not simply mirror existing political inequalities. They create them.

Thinking about “the people” on both sides of a criminal case has implications for those who, taking a “Law and Political Economy” approach to thinking about social and political change, pay special attention to relationships between power, inequality, and democracy. When we exclude from our idea of participation in the criminal process those who would bring the most radical visions for decarceration, we deepen political and structural inequalities even as we claim to be interested in “criminal justice reform.” For despite widespread, though not universal, acknowledgement of the urgent need for large-scale criminal justice reform, mainstream reforms have yet to truly change the fundamental aspects of a system that arrests, prosecutes, and imprisons vast swaths of its population, with striking inequalities along lines of race, class, and gender. We cannot separate out the intractability of the carceral state from the relative powerlessness of those caught up in it. And we cannot shift the constitutional jurisprudence of criminal procedure toward decarceration without recognizing the communal harms of the carceral state—the ways in which many members of the public feel safer when their loved ones and neighbors are not incarcerated or under the supervision of the state.

Achieving large-scale decarceration should be important to anyone interested in law and political economy, for the criminal legal system’s mass surveillance and incarceration of marginalized populations, as well as its economic extraction from the poor, are integral, if not central, to the legitimacy of the neoliberal order—a point that Angela Harris made eloquently in her series of posts on Kant v. Ferguson for this blog. Pushing back against the ways in which the carceral state legitimizes political inequality will require welcoming forms of agonistic, contestatory resistance that open up the political room to transform our baseline understandings of the relationship between racial and economic subordination and the criminal process.

This is how movement actors engaging in collective practices on behalf of defendants understand their work: as a way to build the power necessary to expose the antidemocratic nature of criminal law. When activists post bail for a stranger, or engage in a participatory defense campaign, they see themselves as “practicing abolition every day” and engaging in “abolition in the now”–moving away from the incarceration of poor people and people of color, and toward other ways of addressing wrongdoing and promoting public safety. These movement actors push us toward more sophisticated understandings of the history and discourse surrounding seemingly neutral procedures–their intention is not simply to intervene using existing procedures but also to disrupt the normalcy of those procedures by laying bare the ways in which they function to perpetuate structural inequalities. With bail, for example, the goal of community bail funds is rarely to become permanent fixtures of a local pretrial system, but rather to push for the abolition of bail and even pretrial detention altogether. These groups do not simply study or document widespread forms of inequality; rather, they practice the undoing of those forms of inequality through collective acts of intervention in individual cases. Collective, agonistic participation is not simply an adjunct to the workings of criminal procedure—it should be understood as an integral part of criminal procedure itself. “The People” are on both sides.